•Ilfl 



Shall Cabinet Officers 

Have Seats in 

Congress ? 




iflW^- By 

HENRY BARRETT LEARNED 



NEW YORK 

1915 



u 



Originally published as a letter in The Nation 
Thursday, February 11, 1915, under the title ! 
"Relations of the Legislature and the Executive.' ; 
Vol. 100, pp. 166-167. 




Rumors are once more afloat that there 
are designs on the part of certain mem- 
bers of both the Senate and the House of 
Representatives to bring: the executive into 
closer relations with the law-making- bodies. 
Though the subject is a very old one, it has 
assumed a new interest. It will be recalled 
that President Taft, shortly before he re- 
tired from the Presidency, voiced a growing 
impression that closer relations between the 
Executive and the Legislature were not mere- 
ly desirable, but that they could be arranged 
in strict accord with the Constitution as it 
exists and with certain early practices. These 
views he expressed on at least two notable 
occasions: first, in response to a toast on 
the Presidency before the Lotos Club in New 
York city on November 16, 1912, and again 
in a special message to Congress on the fol- 
lowing December 13. To the message Con- 
gress paid no attention, although there was 
some comment by the press of the country 
on its specific recommendation. But the 
practice of President Wilson in addressing 
the Senate and House in joint session — thus 
far on nine occasions in two annual and 
seven special messages — has kept the gen- 
eral problem alive. Especially in respect to 
appropriations it has long been felt in some 
quarters that if the several heads of depart- 
ments, well informed as to special needs of 
expending money, were themselves present 
in the House of Representatives to answer 
questions or to give direction to debate, they 
might greatly promote the laudable process 

3 



towards national economy. In truth, should 
a plan of introducing the secretariat into 
Congress be formulated in the present ses- 
sion with any degree of precision, it might, 
in view of the present interest in the prob- 
lem, bring forth important — perhaps perma- 
nently beneficial — results. 

"Constructive legislation, when successful, 
is," in the words of President Wilson, "al- 
ways the embodiment of convincing experi- 
ence, and of the mature public opinion which 
finally springs out of experience." Applying 
this sentiment to the present problem even 
before any clear effort to solve it has taken 
shape in a bill before Congress, let us exam- 
ine briefly the course of practices and a few 
efforts in the past which can in any wise 
aid towards its solution. In other words, 
what experiences in the past are there which 
should now be borne in mind? 

The beginnings of the American secre- 
tariat go back to the latter days of the Revo- 
lution. In the year 1781, when there was 
only a single-chambered Congress and no 
provision for what would to-day be termed 
a Chief Executive, three administrative head- 
ships — all of them dependent on Congress — 
were definitely established over Departments 
of Finance, Foreign Affairs, and War. Three 
men, Robert Morris, Robert R. Livingston, 
and Gen. Benjamin Lincoln, were placed in 
their charge. At the same period there were 
also a postal organization under a Postmaster- 
General, a Marine Department which, for want 
of a special Secretary, was consigned to Mor- 
ris's care, and a crude judicial establishment! 
which was really headless, although an at- 
tempt in the same year (February 16) to place 
over it an Attorney-General had been made. 
The system, under the circumstances, worked 
haltingly: only two departments. Foreign Af- 
fairs and War, and the postal organization 



remained under single headships to 1789. 
But it should not be forgotten that the Con- 
gress summoned Morris, Livingston, and, 
more frequently as time elapsed, John Jay 
(Livingston's able successor) to appear be- 
fore it for the purpose of obtaining informa- 
tion and even guidance in the serious prob- 
lems which then confronted it. 

The transition from the Government of the 
Confederation to the new Government under 
the Constitution was necessarily to some ex- 
tent a matter of slow adjustment and com- 
promise. A new office, the Presidency, had 
been created by the Convention of 1787, not 
without careful regard to its independence 
of legislative trammels, and yet to its ef- 
fectiveness as an organ of administration 
and direction. A set of administrative of- 
ficials — the later Cabinet— was so arranged 
that the President might, if he saw fit, sum- 
mon it as a body. Both Washington and 
John Adams, first successive occupants of 
the new office, were, of course, aware of past 
practices. Each of them on many occasions 
and without hesitation addressed Senate and 
House in joint sessions assembled. Accord- 
ingly, they established a practice in this par- 
ticular respect which, consciously abandoned 
by President Jefferson in December, 1801, 
was for the first time thereafter revived by 
President Wilson when, on Tuesday, April 
8, 1913, he chose to address the two houses 
on the subject of the tariff. 

There is to-day a prevalent popular im- 
pression — all too commonly voiced by public 
men and having the sanction of a series of 
careless writers since the latter days of the 
Civil War who have considered the historic 
aspects of the problem — that it was the 
"early practice" of both Senate and House 
to admit to their sessions the President's of- 
ficial advisers. Even as careful a writer as 

5 



Prof. Charles A. Beard speaks as though the 
Cabinet sometimes appeared "in person . . . 
to outline their policies." This impression 
rests upon several instances of somewhat 
different character which, whether taken sep- 
arately or all together, give no real ground 
for the term "practice." It is usually re- 
called in this connection that the language 
of the act of September 2, 1789, creating 
the Treasury Department — ^language supposed 
(but without proof) to have been first sug- 
gested by Alexander Hamilton — provided 
that the Secretary of the Treasury should 
"make report and give information to either 
branch of the Legislature in person or in 
writing, as he may be required, respecting 
all matters referred to him by the. Senate or 
House ... or which shall appertain to 
his office." 

This, moreover, is the law to-day. But is 
there, it may be asked, a single instance re- 
corded in our annals of any Secretary of the 
Treasury ever having been allowed to appear 
before either Senate or House in person in 
order to present a report or even to give in- 
formation? In January, 1790, Hamilton vain- 
ly tried to obtain consent of the House to 
read to it his intricate "Report on Public 
Credit." Again, in November, 1792, there 
were those in the House who greatly desired 
to hear on its floor both Hamilton and Knox 
respecting the causes and possible conse- 
quences of St. Clair's disastrous defeat by 
the Indians. Nothing whatever came of this 
but a refusal to permit them to appear. Look- 
ing a little farther: the Senate summoned 
John Jay before it on two occasions in the 
summer of 1789, first on June 17 to give in- 
formation with respect to a proposed appoint- 
ment, and again on the following July 22 
to inform Senators about a consular conven- 



tion. Twice in August, 1789, Washington, ac- 
companied by Secretary Knox, went before 
the Senate, then in executive session, for 
the definite purpose of helping to adjust a 
treaty with the Choctaw Indians. The lat- 
ter situation proved so very awkward for 
everybody concerned that it seems once for 
all to have established a precedent against 
its repetition, although it need not be for- 
gotten that the right of the President to come 
to the Senate for personal consultation is 
still recognized in the Rules of the Senate. 
There may possibly have been a few other 
incidents similar to some of the foregoing 
during our early years under the Constitu- 
tion. But they were all of them, it may be 
confidently asserted, of such a negative na- 
ture as to give no substantial ground for 
the prevalent impression. 

Since the beginnings of government under 
the Constitution, various devices — liotably 
a Speakership gradually acquiring powers 
that only very recently had to be limited, 
and an intricate and rather illogical system 
of Congressional committees — ^were developed 
largely for the purpose of coordinating legis- 
lative effort with executive administration. 
After quite fifty years of careful discussion 
over the general problem — discussion which 
received marked impetus and guidance 
through the two efforts in both House and 
Senate of the late George H. Pendleton, of 
Ohio, and others to get two bills passed (first 
in the House in 1864-1865, and again in the 
Senate in 1879-1882) for the purpose of ob- 
taining seats in Congress for the secretariat, 
with privileges of debate — ^it may be reason- 
ably asserted that public opinion has had am- 
ple time to reach some degree of maturity on 
the subject. Even as long ago asJL833j_Jus- 
tice Story, in his "Commentaries," carefully 
examined the problem before it had received 
7 ■ , 



\a hearing in Congress, though it would 
be going- farther than his discussion of ■ it^ 
warrants, to say — as has very recently been 
said — that Story either urged or favored 

/without much qualification the admission of 

/ the secretariat to either house. 

I The truth is that the matter remains to- 

\ day what it has always been — a debatable 
and undetermined issue. On the one side, 
favoring admission, stand such names as ex- 
President Taft, President Wilson, James A. 
Garfield, James G. Blaine, John J. Ingalls, 
John D. Long, Perry Belmont, and the late 
Gamaliel Bradford. So far as President V\^il- 
son is concerned, he revealed his position 
first over thirty years ago in an article in 
the Overland Monthly (January, 1884) ; and 
he has not yet indicated in spoken or printed 
word, so far as I am aware, any change. 
On the other side are to be found such names 
as Justin S. Morrill, Thomas B. Reed, Sam- 
uel S. Cox, Judge M. Russell Thayer, Free- 
man Snow, Hannis Taylor, A. Lawrence Low- 
ell, and Hilary A. Herbert — all strongly op- 
posed to any such measure. Accordingly, it 
may be assumed that, if such a measure were 
in the near future introduced into Congress, 
whether with or without President Wilson's 
recommendation, it would run no unobstruct- 
ed course, for it has always been regarded as 
striking at the very heart of our system of 
government, and as calling for readjust- 
ments out of accord with past practices and 
akin to such practices as have long been as- 
sociated with the British system of parlia- 
mentary government. 

That many improvements are to be intro- 
duced in future into our system of govern- 
ment, especially in the matter of closer rela- 
tions between the Executive and the Legisla- 
ture, no one can doubt who has followed the 
evidence of .institutional progress within re- 

8 
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/ 



cent years. __LQ_ji_J;Jiau.glitfu]^jg;ap^^^^ 
December in W£Lshiii^jon_be£QIia_lhe_-Ajner^ 
can Political Science Association, Dr. Wil- 
liam F. Willoug'hby, former Treasurer of 
Porto Ricd'"and'~" no\C 4^e^^ constitutional 

adviser to the Chinese Republic, attempted 
to examine this old subject from a present- 
day sta,ndpoint. So far as the departments 
are concerned, Mr. Willoughby deems it de- 
sirable that Congress should reorg-anize its 
committees in such a way as to relate them 
carefully to the ten great departments. He 
says : '""""* 

Only as it does so will it be possible to make 
the two systems articulate. Only as such 
articulation is secured will it be possible to 
make the two systems M^ork in harmony and 
cooperation with each other. This means in 
practice that each house of Cong-ress shall 
have a system of committees corresponding 
with approximate closeness to the system of 
organization of tlie__Government. If this is 
done, not only will responsibility and author- 
ity be definitely located, but the two systems 
will touch at all points, thus permitting of 
close cooperative relations throughout. 
Dr. Willoughby is frankly opposed to any 
attempt to graft on to our system of gov- 
ernment the alien parliamentary practices of 
the British system, for the simple reason (as 
he holds) that it could not be done with any 
regard to our past development. 

Our committee system is too deeply rooted 
to be either ignored or easily modified. 
Through it we have managed for years to 
get ahead. We have had no "convincing ex- 
perience" — to recur to President Wilson's 
lang-uag-e — on the side of admitting- the secre- 
tariat into Congress. Moreover, that mature 
public opinion, which, in the eyes of Presi- 
dent Wilson and other thoug-htful men, is 
essential to constructive legislation, has thus 
far given no unqualified or general support 
to the plan of admitting- Cabinet officers t» 
Congress. Henry Barrett Learnep 

Washington, D. C, December 17, 1914. 



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